Shane Agelis Developments Pty Ltd v Syvertsen - [2024] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
SHANE AGELIS DEVELOPMENTS PTY LTD v SYVERTSEN & ANOR
[2024] SASC 89
Judgment of the Honourable Justice Hughes
8 July 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COMMENCING PROCEEDINGS - TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL
This is an appeal from an interlocutory decision of a Magistrate refusing to set aside an extension of time to serve proceedings.
The appellant is a building company that was contracted by the respondents to undertake building work at a property in Willunga. The construction was completed in April 2017. On 27 April 2024, the respondents brought an action against the appellant for breach of contract, breach of statutory warranties and breach of Australian Consumer Law. On 24 October 2022, just prior to the expiry of the six-month period within which the filed claim was required to be served on the builder, the homeowners applied to the Magistrates Court to extend the time for service. The application was made on the basis that the respondents required more time to obtain expert evidence necessary to properly particularise the claim. This application was granted ex parte on 25 October 2022.
An election for a moratorium on the steps was taken in the proceedings on 17 November 2022, and the claim was served the following day.
The respondent sought to remove the moratorium in September 2023. On 9 November 2023, the appellant applied to set aside the order dated 25 October 2022. The application was heard by a different Magistrate on 30 January 2024, at which time the application was refused with reasons given. This is the decision subject to this appeal.
The appellant contended that the magistrate who heard the application to set aside the extension of time erred in finding that the homeowners had discharged their duty of candour in respect of the application. The appellant also contended that as a result of the respondent's non-disclosures, it had lost the opportunity to defend the breach of warranty claim on the basis that it was out of time.
Held, refusing leave to appeal:
•The information placed before the first Magistrate was adequate for the making of the extension of time decision. The granting of an extension of time sought before the time has expired is a decision that permits consideration of a range of factors.
•The appellant did not establish that the Magistrate’s refusal to set aside the decision to extend time was made on an erroneous appreciation of material that was, and was not, before the initial decision maker.
•No question of principle or doubt arose such as to justify a grant of permission.

Building Work Contractors Act 1995 (SA) s 32(5); Uniform Civil Rules 2020 (SA) r 41.1, r 64.1, r 64, r 64.5, r 213.1, referred to.
Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 25 ACR 394; Bell Group NV (in liq)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] SASC 89
Decision Date: 8 July 2024

CaseChat Overview and Summary

Shane Agelis Developments Pty Ltd appealed to the Supreme Court of South Australia against an interlocutory order made by a Magistrate. The primary dispute arose from an application by the homeowners to extend the time for service of proceedings against the builder. The builder sought to set aside the Magistrate's decision, arguing that the homeowners breached their duty of candour. The core legal issue was whether the homeowners had breached their duty of candour in making the application for an extension of time to serve the proceedings. The builder argued that the homeowners had concealed material facts which would have affected the outcome of the application.

The Court considered the broad discretion afforded to the Magistrate in making the decision. The Court held that the builder failed to demonstrate that the homeowners breached their duty of candour. The information provided to the first Magistrate was adequate for the extension of time decision. The Court emphasised that an extension of time application made within the statutory period generally creates less tension between the parties’ competing interests than one made after the time has expired. The Court also noted that the homeowners’ application was made when it was still possible for them to serve the builder within time if the order had been refused.

The Court found that the builder had not established that the homeowners breached their duty of candour. The Court dismissed the appeal and ordered the builder to pay the homeowners' costs on an indemnity basis. This decision underscores the importance of providing sufficient information when making an application for an extension of time to serve proceedings, but also highlights that an application made within time generally creates less tension between the parties' competing interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The homeowners contend that they should be awarded costs on an indemnity basis.Consideration The builder came before the Court with an ambitious task. That task was to persuade this Court to set aside an interlocutory order made in the exercise of a broad discretion. Further, if successful, this Court would be required to remit to the Magistrate’s Court the making of the original decision and that is also a decision made in the exercise of a broad discretion. For the reasons that follow, that task has not been achieved. The builder did not establish, either before the second Magistrate or before the Court, that the homeowners breached the duty of candour for an extension of time to serve the proceedings. The information placed before the first Magistrate was adequate for the making of the extension of time decision. The grant of an extension of time to serve proceedings is a decision that permits consideration of a range of factors, and the attribution of weight to any of those factors by reference to the particular circumstances of the case. In Gibbs v Williams[19]the Full Court of the Supreme Court of South Australia set out the factors which are material to an application to renew a summons. Sangster J observed that these included the applicant’s reasons for the failure to serve within time, the contribution of each party to the failure to serve, the effect on each party in respect of the litigation, whether the claim would be statute-barred and where the interests of justice lay.[20] These factors may also be relevant to the determination of an application to extend time to serve before the time has expired. However, an application that is made within time will generally create less tension between the parties’ competing interests than one that is made after time has expired because a respondent will not have had a basis to anticipate that litigation will not ensue and because the applicant has not been derelict in complying with the procedural rules. The proceedings had been commenced within the statutory time frame for all of the causes of action asserted. The time limit for one of the causes of action, the breach of statutory warranty, subsequently expired. The homeowners’ application to extend time to serve was within the period within which service was required. [19] (1979) 24 SASR 243.[20] At p 247. The chronology of relevant events was not withheld from the first Magistrate. Not only were the proceedings filed within time, the application for service to be extended was made at a time when it was still possible for the homeowners to serve the builder if the order extending time to serve was not made. There was a day or so following the determination of the homeowners’ application in which the homeowners could have effected service within time if the application had been refused. Whilst the builder contends that if the order had not been made then the homeowners would not have served their application within time, the builder has not established that factual proposition.